Beadle v. Postal

Filing 14

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND re: 5 . Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 5/2/2017. (afc) WRITTEN ORDER follows hearing held April 24, 2017 on Defend ant's Motion to Dismiss. Minutes of hearing: ECF no. 12 . CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on May 3, 2017.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

ANTHONY TRAN BEADLE,
Plaintiff,
vs.
MIKE POSTAL,

Civ. No. 17-00049 JMS-KSC
ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS FIRST AMENDED
COMPLAINT WITH LEAVE TO
AMEND

Defendant.

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FIRST
AMENDED COMPLAINT WITH LEAVE TO AMEND
I. INTRODUCTION
On February 2, 2017, Defendant Mike Postal (“Defendant”) removed
pro se Plaintiff Anthony Tran Beadle’s (“Plaintiff”) First Amended Complaint
(“FAC”), ECF No. 1-3, which was originally filed in the State of Hawaii District
Court of the First Circuit. Notice of Removal, ECF No. 1. Plaintiff’s claims arise
from an incident where Defendant, an employee at Whole Foods, allegedly refused
to allow Plaintiff entry to the store without first placing his service dog on a leash
and on the ground. Plaintiff further alleges that Defendant required Plaintiff to
disclose medical information documenting his disability and provide proof that his
dog is a service animal. FAC at 1. The FAC asserts claims that Defendant
violated Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§§ 12181 et seq.,1 and the Health Insurance Portability and Accountability Act of
1996 (“HIPAA”), 42 U.S.C. §§ 1320d et seq. Id.
Currently before the court is Defendant’s Motion to Dismiss the FAC,
with prejudice, on the grounds that Plaintiff failed to allege facts sufficient to state
a plausible claim for violation of the ADA and that there is no private cause of
action under HIPAA. Based on the following, the court agrees and dismisses the
ADA claim with leave to amend, and dismisses the HIPAA claim without leave to
amend.
II. BACKGROUND
A.

Factual Background
As alleged in the FAC, Plaintiff suffers from post-traumatic stress

disorder (“PTSD”), extremely high triglyceride levels, a generalized anxiety
disorder, and an unspecified physical condition. FAC at 1. On November 29,
2016, 2 Plaintiff attempted to enter a Whole Foods store, but was barred by
Defendant, who required that Plaintiff’s service dog “be leashed and on the
ground.” Id. Defendant further required that Plaintiff provide proof that his dog is

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Although the FAC does not allege violation of a specific provision of the ADA, it is
clear that Plaintiff’s claim falls under Title III -- Title I concerns employment discrimination and
Title II concerns public services. See 42 U.S.C. §§ 12112(a) (Title I), 12132 (Title II).
2

The Complaint, but not the FAC, identifies November 29, 2016, as the date of the
underlying incident. See Compl., ECF No. 1-2.
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a service animal, and documentation regarding both his disability and why he
needs to carry his service animal, rather than having it leashed and on the ground.
Id. Plaintiff alleges that Defendant’s conduct violated both the ADA and HIPAA.
Id. Plaintiff further alleges that as a result of this “traumatic event,” he has been
unable to study and concentrate, which led to reduced grades, an inability to
participate in some normal daily activities, and aggravation of his psychological
and physical conditions. Id. Plaintiff seeks compensatory damages of $13,000.
Id.
B.

Procedural Background
On December 16, 2016, Plaintiff filed a Complaint in state court.

ECF No. 1-2. On January 27, 2017, Plaintiff filed his FAC, specifically alleging
violations of federal law. ECF No. 1-3. On February 2, 2017, Defendant timely
removed the FAC to this court. ECF No. 1.
On February 10, 2017, Defendant filed the instant Motion to Dismiss
for failure to state a claim. ECF No. 5. On March 7, 2017, Defendant filed a
Supplemental Citation of Authority in Support of the Motion to Dismiss. ECF No.
9. Plaintiff filed an Opposition on April 3, 2017, that included additional factual
allegations, argument, and supporting exhibits. ECF No. 10. On April 10, 2017,
Defendant filed a Reply. ECF No. 11. A hearing was held on April 24, 2017.

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III. STANDARDS OF REVIEW
A.

Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss

for “failure to state a claim upon which relief can be granted.” “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir.
2008). This tenet -- that the court must accept as true all of the allegations
contained in the complaint -- “is inapplicable to legal conclusions.” Iqbal, 556
U.S. at 678. Accordingly, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. (citing
Twombly, 550 U.S. at 555); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.
2011) (“[A]llegations in a complaint or counterclaim may not simply recite the
elements of a cause of action, but must contain sufficient allegations of underlying
facts to give fair notice and to enable the opposing party to defend itself
effectively.”).
Rather, “[a] claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). Factual allegations that only permit the court to infer
“the mere possibility of misconduct” do not show that the pleader is entitled to
relief as required by Rule 8. Iqbal, 556 U.S. at 679.
B.

Pro Se Pleadings
Because Plaintiff is proceeding pro se, the court liberally construes his

Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block,
832 F.2d 1132, 1137 (9th Cir. 1987) (per curiam). The court also recognizes that
“[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro se
litigant is entitled to notice of the complaint’s deficiencies and an opportunity to
amend prior to dismissal of the action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248
(9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir.
2013). A court may, however, deny leave to amend where further amendment
would be futile. See, e.g., Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532
(9th Cir. 2008) (reiterating that a district court may deny leave to amend for,
among other reasons “repeated failure to cure deficiencies by amendments
previously allowed . . . [and] futility of amendment”).
///
///

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IV. DISCUSSION
A.

The FAC Fails to State an ADA Claim
1.

Legal Standards
Title III of the ADA prohibits discrimination against an individual “on

the basis of disability in . . . any place of public accommodation by any person who
owns, leases . . . , or operates a place of public accommodation.” 42 U.S.C.
§ 12182(a). To state a claim under Title III of the ADA, a plaintiff must show that:
“(1) he is disabled within the meaning of the ADA; (2) the defendant is a private
entity that owns, leases, or operates a place of public accommodation; and (3) the
plaintiff was denied public accommodations by the defendant because of his
disability.” Ariz. ex rel. Goddard v. Harkins Amusement Entm’t Enter., Inc., 603
F.3d 666, 670 (9th Cir. 2010) (citing Molski v. M.J. Cable, Inc., 481 F.3d 724, 730
(9th Cir. 2007)).
Discrimination under Title III of the ADA is defined to include “a
failure to make reasonable modifications in policies, practices, or procedures, when
such modifications are necessary to afford such goods, services, facilities,
privileges, advantages, or accommodations to individuals with disabilities, unless
the entity can demonstrate that making such modifications would fundamentally
alter the nature of such goods, services, facilities, privileges, advantages, or

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accommodations.” 42 U.S.C. § 12182(b)(2)(A)(ii). The implementing regulation
contains specific provisions for service animals and provides that “[g]enerally, a
public accommodation shall modify policies, practices, or procedures to permit the
use of a service animal by an individual with a disability.” 28 C.F.R.
§ 36.302(c)(1).3
Thus, Plaintiff must show that Defendant discriminated against him
by refusing to allow him to carry his service dog into Whole Foods to
accommodate his disability. See 28 C.F.R. § 36.302(c)(7) (“Individuals with
disabilities shall be permitted to be accompanied by their service animals in all
areas of a place of public accommodation where members of the public, . . .
customers, [or] patrons . . . are allowed to go.”). This in turn requires Plaintiff to
show that his dog is a service animal under the ADA. See 28 C.F.R. § 36.104
(defining a “service animal” for purposes of the ADA); see also Davis v. Ma, 848
F. Supp. 2d 1105, 1114 (C.D. Cal. 2012) (stating that plaintiff must establish that
his puppy met the definition of a service animal under the ADA); cf. Coffman v.
Taqueria Los Gallos, 2015 WL 3935180, at *4 (D. Nev. June 26, 2015) (finding
that plaintiff stated a Title III ADA claim sufficient to avoid dismissal by alleging,

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Congress directed the Attorney General to issue regulations to implement Title III of the
ADA. See 42 U.S.C. § 12186(b). 28 C.F.R. § 36.302 addresses “[m]odifications in policies,
practices, or procedures.” Subsection (c) covers service animals.
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in part, that Plaintiff needed his seeing-eye dog to aid him due to his obvious
disability).
Remedies available under Title III of the ADA include injunctive and
declaratory relief, but not damages. See 42 U.S.C. § 12188(a)(1) (providing that
remedies for Title III violations are those set forth in 42 U.S.C. § 2000a-3(a)
(authorizing civil actions for injunctive relief)); Ervine v. Desert View Reg’l Med.
Ctr. Holdings, LLC, 753 F.3d 862, 867 (9th Cir. 2014) (“Damages are not an
available remedy to individuals under Title III of the ADA; individuals may
receive only injunctive relief.”).
2.

Application of Legal Standards
Here, the FAC plausibly alleges the first element -- that Plaintiff is

disabled under the ADA. 4 Nevertheless, for the reasons set forth below, the FAC

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The FAC alleges that Plaintiff suffers from PTSD, a generalized anxiety disorder,
extremely high triglyceride levels, and an unspecified physical condition. FAC at 1. Under the
ADA, a person is considered disabled if he has: (1) “a physical or mental impairment that
substantially limits one or more major life activities;” (2) “a record of such impairment;” or (3) is
“regarded as having such an impairment.” 42 U.S.C. § 12102(1); see also 29 C.F.R.
§ 1630.2(g). A mental impairment is defined as “any mental or psychological disorder, such as
an intellectual disability (formerly termed ‘mental retardation’), organic brain syndrome,
emotional or mental illness, and specific learning disabilities.” 29 C.F.R. § 1630.2(h). Major
life activities are defined, in part, to include “learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C. § 12102(2)(A). PTSD is a recognized mental
impairment that substantially limits brain function. See 29 C.F.R. § 1630.2(j)(3)(iii); see also
Thomas v. S.F. Hous. Auth., 2017 WL 878064, at *8 (N.D. Cal. Mar. 6, 2017) (recognizing that
under § 1630.2(j)(3)(iii) PTSD constitutes a plausible disability for purposes of the ADA); Stuart
v. Vilsack, 2016 WL 6902347, at *6 (E.D. Wash. Nov. 23, 2016) (“[PTSD] is a recognized
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fails to state a Title III ADA claim. 5
First, Plaintiff has not alleged facts sufficient to show that Defendant
is subject to Title III -- that he “owns, leases . . . , or operates a place of public
accommodation.” 42 U.S.C. § 12182(a). The Ninth Circuit has defined the term
“to operate” for purposes of Title III of the ADA as “to put or keep in operation,”
“to control or direct the functioning of,” or “to conduct the affairs of; manage.”
Lentini v. Cal. Ctr. For the Arts, 370 F.3d 837, 849 (9th Cir. 2004). Because Title
III seeks to limit accountability to “those in a position to ensure
nondiscrimination,” relevant to a determination of whether a defendant is an
operator is “whether the individual had the power to facilitate any necessary
accommodation.” Id. (quotation marks and citations omitted). Thus, Lentini found
that an employee in a position to make and direct employees to implement policy
decisions could be liable under Title III of the ADA. Id. But, employees who
merely implement company-wide policies cannot be personally liable under Title
III of the ADA. See Butler v. WinCo Foods, LLC, 2013 WL 12076010, at *3 (C.D.
Cal. Mar. 11, 2013) (finding that a store manager who merely implements

impairment [under] 29 C.F.R. § 1630.2(j)(3)(iii).”). Thus, by alleging that Plaintiff suffers from
PTSD, the FAC plausibly alleges that Plaintiff is disabled under the ADA.
5

And Plaintiff seeks only damages, but as set forth above, damages are not recoverable
under Title III of the ADA. See Ervine, 753 F.3d at 867 (citing 42 U.S.C. § 12188(a)). Any
amended complaint may not seek damages under Title III. Instead, it may seek injunctive relief.
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company-wide policy does not “operate” a place of public accommodation under
Title III of the ADA); see also Aikins v. St. Helena Hosp., 843 F. Supp. 1329, 1335
(N.D. Cal. 1994) (dismissing Title III ADA claim against a defendant physician
who lacked power to control hospital policy). Here, Plaintiff does not allege that
Defendant “operated” Whole Foods. At best, the FAC alleges that Defendant is
merely “an employee of Whole Foods Inc.” FAC at 1. And nowhere does the
FAC allege whether Defendant had authority to make or alter Whole Foods’ policy
regarding service animals. This is insufficient to show that Defendant could be
individually liable under Title III of the ADA.
Second, the FAC fails to allege facts showing that
Plaintiff’s dog is a service animal under the ADA, and that carrying Plaintiff’s
unleashed dog into Whole Foods was necessary to accommodate his disability.
See Davis, 848 F. Supp. 2d at 1114. The pertinent regulation defines a “service
animal” under the ADA as:
any dog that is individually trained to do work or perform
tasks for the benefit of an individual with a disability,
including a physical, sensory, psychiatric, intellectual, or
other mental disability. Other species of animals,
whether wild or domestic, trained or untrained, are not
service animals for the purposes of this definition. The
work or tasks performed by a service animal must be
directly related to the individual’s disability. Examples
of work or tasks include, but are not limited to, assisting
individuals who are blind or have low vision with
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navigation and other tasks, alerting individuals who are
deaf or hard of hearing to the presence of people or
sounds, providing non-violent protection or rescue work,
pulling a wheelchair, assisting an individual during a
seizure, alerting individuals to the presence of allergens,
retrieving items such as medicine or the telephone,
providing physical support and assistance with balance
and stability to individuals with mobility disabilities, and
helping persons with psychiatric and neurological
disabilities by preventing or interrupting impulsive or
destructive behaviors. The crime deterrent effects of an
animal’s presence and the provision of emotional
support, well-being, comfort, or companionship do not
constitute work or tasks for the purposes of this
definition.
28 C.F.R. § 35.104.
Here, the FAC alleges no facts to show what specific work or task
Plaintiff’s dog is trained to perform, let alone how such work or task is necessary
to accommodate Plaintiff’s disability, and why the service dog could not perform
its work or task while leashed and on the ground. In short, the FAC does not allege
why a modification of Defendant’s requirement that Plaintiff’s service dog be
leashed and on the ground was reasonably necessary to accommodate Plaintiff’s
disability.
Based on the foregoing, the court finds that the FAC fails to state a
plausible claim upon which this court could grant relief. See Rule 12(b)(6); see
also Iqbal, 556 U.S. at 678 (“To survive a motion to dismiss, a complaint must

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contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”). Thus, Plaintiff’s Title III ADA claim is DISMISSED with
leave to amend by May 15, 2017.
B.

Plaintiff Fails to State a HIPAA Claim
Plaintiff’s claim for violation of HIPAA fails because there is no

private right of action to bring such a claim. See Frazier v. United States, 2017
WL 1279382, at *2 (Fed. Cir. Apr. 6, 2017) (recognizing that HIPAA “does not
create a private right of action”); see also United States v. Streich, 560 F.3d 926,
(9th Cir. 2009) (“HIPAA does not provide any private right of action.”); Webb v.
Smart Document Solutions, LLC, 499 F.3d 1078, 1081 (9th Cir. 2007) (same).
Thus, Plaintiff’s HIPAA claim is DISMISSED without leave to amend.
C.

Leave to Amend
Because the court cannot conclude that it would be impossible for

Plaintiff to allege sufficient facts to state a Title III ADA claim, the court grants
Plaintiff leave to amend his FAC by May 15, 2017. More specifically, Plaintiff is
granted leave to amend his Title III ADA claim and, as he stated during the
hearing, to add a non-HIPAA claim for damages. Plaintiff must comply with the
Federal Rules of Civil Procedure and the Local Rules for the United States District

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Court for the District of Hawaii if he amends his pleading. And the amended
complaint must be designated as a “Second Amended Complaint.” 6
An amended complaint generally supersedes prior complaints. See
Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). The
court will not refer to the original complaint or a prior amended complaint to make
an amended complaint complete, although it will not ignore contradictory
statements of fact between an original and amended complaint. Local Rule 10.3
requires that an amended complaint be complete in itself without reference to any
prior pleading. Defendants not named in the caption and claims dismissed without
prejudice that are not realleged in an amended complaint may be deemed
voluntarily dismissed. See Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir.
2012) (“[C]laims dismissed with prejudice [need not] . . . be repled in a[n]
amended complaint to preserve them for appeal . . . [b]ut . . . claims [that are]

6

If Plaintiff chooses to file a second amended complaint, he should be aware that while
the regulations prohibit a public accommodation from asking about the “nature or extent of a
person’s disability,” they do allow “two inquiries to determine whether an animal qualifies as a
service animal.” 28 C.F.R. § 36.302(c)(6). They are (1) whether “the animal is required because
of a disability[,] and [(2)] what work or task the animal has been trained to perform.” Id. But, “a
public accommodation may not make these inquiries about a service animal when it is readily
apparent that an animal is trained to do work or perform tasks for an individual with a disability
(e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person’s
wheelchair, or providing assistance with stability or balance to an individual with an observable
mobility disability).” Id.
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voluntarily dismissed [are] . . . waived if not repled.”). And Plaintiff may include
only one claim per count.
V. CONCLUSION
Based on the foregoing, Defendant’s Motion to Dismiss is
GRANTED. Plaintiff’s HIPAA claim is DISMISSED without leave to amend, and
his Title III ADA claim is DISMISSED with leave to amend. Plaintiff may file a
second amended complaint, as set forth above, by May 15, 2017. Failure to timely
file a second amended complaint will result in dismissal of this action with
prejudice for failure to state a claim.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 2, 2017.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Beadle v. Postal, Civ. No. 17-00049 JMS-KSC, Order Granting Defendant’s Motion to Dismiss
First Amended Complaint with Leave to Amend

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